Defective / Unsafe Marine Product 402A Strict Liability

A strict liability plaintiff is a consumer, user or foreseeable bystander who has been harmed by a defective product. Having graduated as a marine engineer from a merchant marine academy, acquired three U.S. Coast Guard engineer licenses and previously represented yacht/boat manufacturers and repair facilities for 19 years, board certified maritime attorney Keith Brais with the law firm of Brais Law Firm is in a unique position to assist consumers who suffer personal injury, death or property damage as a result of an accident involving a defective or unsafe marine product. The lawyers at the law firm of Brais Law Firm with offices in Miami, Florida, Boston, Massachusetts and Houston, Texas are here to help.

Boat explosion

In 1976, the Florida Supreme Court joined the national trend and issued its landmark decision of West v. Caterpillar Tractor Co., supra, formally adopting the doctrine of strict liability as promulgated by the Restatement (SECOND) OF TORTS §402A (ALI 1965):

  • One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
    • The seller is engaged in the business of selling such a product, and;
    • Is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
  • The rule stated in the first subsection applies although;
    • The seller has exercised all possible care in the preparation and sale of his product, and;
    • The user or consumer has not bought the product from or entered into any contractual relation with the seller.

Pursuit of a strict liability claim does not require the plaintiff to be in privity, i.e., the direct purchaser of the product. Traditional negligence concept of notice of defect and opportunity to cure are irrelevant. Strict liability applies to cases where the seller is engaged in the business of selling goods and the product reaches the buyer/user without substantial change. It applies only to sales contract, not to contracts for repair and other services.

Defenses to a strict liability claim include:

  • Not Engaged In “The Business Of Selling” Product
  • Not A “Product”
  • Service Providers
  • Sellers of Used Products

Strict liability also includes design defects that may be defended against by one or more of the following:

  • “State of the Art”
  • Unavoidably by Dangerous Products
  • Substantial Alterations
  • Military Contractor

Strict liability also includes marketing defects, i.e., the failure to warn, the failure to instruct and even the failure to test or inspect for latent defects.

Negligence and strict liability are remedies that provide only tort damages, i.e., losses that are the result of the wrongdoer’s negligence or the defective part, respectively. These damages include: personal injury, wrongful death, diminished value of property, cost of repair or restoration, value of fixtures, personal property and loss of use in certain circumstances. Damages to the defective or dangerous product itself must be recovered under a breach of contract theory, the reasoning being that contracts provide for only “the benefit of the bargain”, i.e., the cost of the product or part itself. Put differently, a contract based claim only allows for the recovery of the 89 dollar part and not the 1.2 million dollar yacht into which the part was installed. This prohibition against the recovery of tort damages is generally known as the “economic loss rule.” Breach of warranty mixes the theories and allows for the recovery of both contract and tort damages depending upon the circumstances. If the breach of the sales contract causes physical harm or damage to property other than the product itself, tort damages are available. If the breach of warranty results in damage to the product itself, contract damages are available.

The attorneys at the law firm of Brais Law Firm have the experience to protect your rights, the compassion to serve your needs, and the skill to obtain the compensation you deserve. To reach our lawyers you may click email the firm, call 800-499-0551 from within the U.S., Skype BraisLaw worldwide or click Contact Us to select and complete a form for a free evaluation of your case.

Client Reviews

★★★★★
After my accident I contacted them right away. I was able to see them the same day and was kept in contact throughout the process. Everyone in the office was very accommodating, polite and professional. I highly recommend Brais Law and think very highly of their lead attorneys. They helped me WIN my case, and I am forever grateful. They went above and beyond to assist me. Thank you all so very much. H.S.
★★★★★
The entire law firm of Brais Law were extremely helpful in handling my snorkeling accident. The firm takes customer service to a new level, not only being readily available, but courteous, respectful, sympathetic, and empathetic. The firm, especially Keith and Karla, were always quick to return calls, offer updates, and provide guidance and information. There is no comparison when it comes to firms. If you need legal advice or representation, especially concerning maritime events, contact Keith and his crew first and save yourself a lot of time and heartache! J.C.
★★★★★
I was looking to refer a client injured on a cruise ship and had the pleasure of speaking to Keith. Keith was extremely helpful and he took time out of his day to provide some guidance. If you're looking for a Admiralty & Maritime /Personal Injury Lawyer in Florida, I would highly recommend Brais Law Firm! T.C.